As has been standard fare for the property industry over the last few years, a new financial year will bring in a number of changes to the development and sales process. It is important that developers are aware of these changes, and begin taking steps to comply with the new requirements in order to avoid any delays or other adverse implications once the amendments take effect.

GST withholding – The GST withholding regime has received significant media attention and will apply to contracts for the sale of new residential premises or potential residential land entered into on or after 1 July 2018 (or entered into prior to that date where settlement, or the first instalment due under the contract, doesn’t occur until after 1 July 2020). These measures will require:

• Vendors to issue notices to purchasers advising in relation to whether a Purchaser is required to withhold and, if so, the amount to be withheld;

• Purchasers to withhold 10% of the price (or 7%, where the margin scheme is being used) at settlement (or payment of the first instalment); and

• Purchasers to remit the amount withheld to the ATO (on account of the Vendor’s GST liability).

Vendors will still be required to lodge BAS statements in the usual way and be entitled to a credit towards their GST obligations for those payments withheld and paid to the ATO by purchasers.

We recommend that all sales contracts to which the measures will apply are updated to include appropriate provisions to deal with these changes.

Restrictive covenants in transfers ­– Land Registry will cease to accept transfers of land containing restrictive covenants where those transfers arise from contracts signed on or after 1 July 2018 (or where the transfer is signed on or after that date where there is no contract). Instead, the terms of the restrictive covenant will need to be registered at Land Registry in a memorandum of common provisions (MCP). The MCP will then be referenced in the transfer of land.

Again, for transactions where it is intended to create a restrictive covenant on registration of the transfer, contracts of sale should be updated to contemplate the covenant being created by reference to MCPs.

Developers should also take steps to register MCPs as soon as possible, to avoid any pre-settlement delays which may be caused by Land Registry reviewing or requisitioning MCPs.

Restrictive covenants in plans of subdivision – for plans of subdivision certified on or after 1 July 2018, any restrictive covenants created in the plan must be limited to a single page. Developers (and their surveyors) should be updating and amending any plans of subdivision which have not been certified and which do not comply with the new requirements (noting that before amending any plans of subdivision, the effect of the amendment should be considered in light of the rights of any existing purchasers of lots on that plan of subdivision).

To the extent restrictive covenants in plans of subdivision are to be amended, it may be appropriate to consider including those restrictions in MCPs (subject to any Council requirements, and whether or not sales contracts allow this).

Staged subdivisions – From 1 July 2018, Land Registry will require a separate plan to be lodged to remove a staged lot from a staged subdivision (previously, the removal from the staged subdivision could occur in a plan of subdivision which further subdivided that staged lot).

Insolvency clauses – These clauses (known as ipso facto clauses) allow one party to terminate a contract on the basis of certain insolvency events occurring. From 1 July 2018, a party will not be able to terminate a contract where the counterparty has a voluntary administrator, receiver or controller appointed, or a scheme of arrangement is proposed. Instead, rights to terminate on the basis of the insolvency event (noting other termination rights may still be exercised) are postponed until the administration or receivership ends, or the company is wound up.

If you have any queries in relation to the changes or how they may affect your developments or transactions, please contact:

Victor Di Felice
Principal
Sladen Legal
T +61 3 9611 0162  l M +61 419 515 010   
Level 5, 707 Collins Street, Melbourne, 3008, Victoria, Australia
vdifelice@sladen.com.au

Joshua Hunter
Senior Associate
Sladen Legal
T +61 3 9611 0128
Level 5, 707 Collins Street, Melbourne, 3008, Victoria, Australia
jhunter@sladen.com.au